Law360 Quotes Michael Asaro, Parvin Moyne on DOJ Self-Disclosure Updates

For its article “DOJ's New Cooperation Carrots May Not Whet Cos.' Appetites,” Law360 quoted white collar defense and global investigations practice co-head Michael Asaro and partner Parvin Moyne. The article examines updates by the Department of Justice (DOJ) to its corporate criminal enforcement policies that may motivate companies to self-disclose misconduct in certain circumstances.

Asaro, a former federal prosecutor, said the updates could prove effective and would frame the advocacy he does on behalf of companies. However, he noted, the changes leave prosecutors with considerable discretionary leeway. He added, “The declination standard is enticing, but it's really this extraordinary cooperation notion that's clearly a really high bar. It remains to be seen whether it's going to be really an almost insurmountable bar. It depends on how they apply it.”

Moyne, a former Assistant U.S. Attorney in New York, said that cases of corporate malfeasance usually involve either a weak compliance function or individuals intentionally circumventing a strong compliance function. She noted that DOJ, by examining a company’s compliance function, can determine whether individual actors are culpable and then focus on holding them responsible.

Moyne said that DOJ clearly wants to empower compliance officers to strengthen their programs, noting that they now have additional evidence showing the critical need for strong compliance programs that they can present to their boards and senior executives.

Asaro also said that companies not directly regulated by agencies such as the Securities and Exchange Commission or the Commodity Futures Trading Commission now have a reason to double down on ensuring they have solid programs.